Citation Nr: 1451190
Decision Date: 11/19/14 Archive Date: 11/26/14
DOCKET NO. 09-16 933 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California
THE ISSUES
1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a lung disorder, to include as due to asbestos exposure, and if so, entitlement to that benefit.
2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) due to military sexual trauma (MST), and if so, entitlement to that benefit.
REPRESENTATION
Veteran represented by: Swords to Plowshares, Veterans Rights Organization, Inc.
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
H. M. Walker, Counsel
INTRODUCTION
The Veteran served on active duty from September 1972 to April 1974.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which declined to reopen the Veteran's claims.
In September 2014, the Veteran appeared and testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file.
The Board notes that the Veteran's claim for a lung disorder was originally characterized as entitlement to service connection for asbestosis. The Board finds, however, that it would be most beneficial to characterize the issue generally as shown on the cover page of this decision.
In addition to a paper claims file, the Veteran also has an electronic file in Virtual VA and/or VBMS. The Board has reviewed both the paper and electronic records in rendering this decision.
The issue of entitlement to service connection for a lung disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. An unappealed January 2005 rating decision denied service connection for PTSD and a lung disorder (claimed as asbestosis).
2. Evidence received since the January 2005 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims for service connection for a lung disorder and PTSD; such evidence is not cumulative or redundant of evidence already of record.
3. The Veteran has PTSD as a result of an in-service personal assault and MST.
CONCLUSIONS OF LAW
1. The January 2005 rating decision that denied entitlement to service connection for asbestosis and PTSD disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2014).
2. Evidence received since the January 2005 rating decision in relation to the Veteran's claim for entitlement to service connection for a lung disorder and PTSD is new and material, and, therefore, the claim may be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2014).
3. The Veteran's PTSD is due to MST incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§, 3.303, 3.304(f) (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Claims to Reopen
The Veteran seeks to reopen the previously denied claims of entitlement to service connection for a lung disorder and PTSD.
Without the need to discuss each piece of newly received evidence in detail, the Board finds that new and material evidence has been received to reopen the previously denied claims of entitlement to service connection for a lung disorder and PTSD.
The basis for the denials in the January 2005 rating decision was that the Veteran did not have current diagnoses of PTSD or asbestosis.
Multiple pieces of clinical evidence received since January 2005 show that the Veteran currently has PTSD and potential asbestos-related lung abnormalities. Accordingly, this evidence is sufficient to reopen the previously-denied claims for service connection for a lung disorder and PTSD. See 38 C.F.R. § 3.156(a).
Service Connection
The Veteran contends that he has PTSD due to MST.
Service connection for PTSD requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2014).
The Veteran contends that he was drugged and sexually assaulted following a 4-day liberty pass while at sea. He recalled waking up and finding feces in his bed and "stuff on his rectum." This had never occurred to him before. The Veteran was ordered to undergo urinalysis, which found drugs in his system. He recalled using alcohol on liberty, but did not recall taking any drugs. He subsequently went AWOL. He also maintains that he was physically assaulted while in the Brig, and over a two month period, someone would grab his private parts in the middle of the night and run off. The Veteran maintains that he self-medicated following service to help deal with his in-service MST.
A review of his service treatment records show that after the alleged sexual assault, he was seen for episodes of bed wetting. The service treatment records also document the urinalysis and finding of drugs in his system. Following service, he had a significant history of polysubstance abuse as documented in his medical records.
The Veteran's treating therapist indicated that the Veteran has been seen for multiple symptoms related to his in-service MST since 2007. She indicated that he experiences nightmares, paranoia, substance abuse/dependency, chronic unemployment, episodes of major depression, and panic attacks due to his MST endured as a 17 year old.
In a September 2012 letter from the Medical Director of the VA ORT Clinic, he indicated that the Veteran is being treated for PTSD, depression, and addiction. His PTSD symptoms include irritability, nightmares, impaired concentration, low energy, and intrusive thoughts are more likely than not caused by MST. The director advised that the Veteran's symptoms have been present since he had first started working with him in 2002.
The Medical Director submitted a follow-up letter in September 2014 again linking the Veteran's PTSD to his MST. This time, the director included a more detailed rationale for his opinion following review of the Veteran's records. He opined that it is highly unusual for a person to develop bed wetting and fecal incontinence as an adult. The director further noted that it is his opinion "stated to a reasonable degree of medical probability that the acute onset of symptoms (such as bed wetting and fecal incontinence) would be consistent with the sequalae [sic] of acute sexual trauma."
There is no clinical opinion to the contrary.
Upon careful review of the record, the Board finds that the preponderance of the evidence supports the Veteran's claim of service connection for PTSD. Importantly, both the medical evidence from his treating physician and therapist, and the Veteran's service records, corroborate his account of his alleged personal assault and MST stressor events. See 38 C.F.R. § 3.304 (f)(5).
There are no conflicting opinions as to whether the Veteran suffers from PTSD related to events during his military service. Although the Veteran was not diagnosed as having PTSD for many years following discharge from service, the statements from his VA physician and Vet Center therapist provide unequivocal support that his service-related stressors contribute to his current PTSD. Moreover, in the 2014 opinion, the treating physician/medical director indicated that the Veteran's post-assault bed wetting and fecal incontinence were indicative of acute sexual trauma. As such, the preponderance of the evidence shows that the Veteran's PTSD is related to the alleged MST.
ORDER
New and material evidence having been received, the claim of entitlement to service connection for a lung disorder is reopened.
New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened.
Service connection for PTSD is granted.
REMAND
In light of the reopening above, the Board finds that further evidentiary development is necessary regarding the Veteran's service-connection claim for a lung disorder.
The Veteran maintains that he has a current lung disorder related to in-service asbestos exposure. Soon after discharge from service, the Veteran was seen for lung-related complaints. Recent VA treatment records show treatment for numerous lung-related disorders, including possible asbestos-related lung changes, left pleural plaque, pulmonary nodule, chronic obstructive pulmonary disease (COPD), emphysema, and possible asbestosis. The Veteran has not yet been afforded a VA examination to determine the nature and etiology of his claimed lung disorder.
The Board finds that the minimal threshold for when a VA examination is warranted has been met here. 38 C.F.R. § 3.159(c)(4). As such, the Veteran should be afforded a VA examination in conjunction with his claim.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should attempt to verify whether the Veteran was exposed to asbestos during service, taking into account his lay statements, service treatment records, service personnel records, and any other relevant documents. If deemed necessary, contact any appropriate agency in order to verify the Veteran's claimed asbestos exposure
2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any lung disorder. The claims folders and any pertinent evidence located in an electronic format must be made available to and reviewed by the examiner, and any indicated studies should be performed.
The examiner is asked to confirm whether the Veteran currently has asbestosis or any other asbestos-related disease, and opine as to whether any diagnosed respiratory disorder is at least as likely as not (a 50 percent or greater probability) related to the Veteran's military service.
The examiner is asked to specifically address the post-service treatment records showing lung problems soon after discharge from service, as well as the more recent VA treatment records attributing lung changes to asbestos exposure.
It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
A complete rationale should be provided for all opinions given.
The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination.
3. The AOJ should then re-adjudicate the claim. If the claim remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the appellant the opportunity to respond. The case should then be returned to the Board, if in order, for further review.
By this remand, the Board intimates no opinion as to any final outcome warranted.
No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2014).
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MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs